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Tuesday, November 26, 2013

Inside America's Plan to Kill Online Privacy Rights Everywhere

The United States and its key
intelligence allies are quietly working behind the scenes to kneecap a mounting
movement in the United Nations to promote a universal human right to online
privacy, according to diplomatic sources and an internal American government document
obtained by The Cable.
The diplomatic battle is playing
out in an obscure U.N. General Assembly committee that is considering a
proposal by Brazil and Germany to place constraints on unchecked internet
surveillance by the National Security Agency and other foreign intelligence services.
American representatives have made it clear that they won't tolerate such
checks on their global surveillance network. The stakes are high, particularly in
Washington -- which is seeking to contain an international
backlash against NSA spying -- and in Brasilia, where Brazilian President
Dilma Roussef is personally involved in monitoring the U.N. negotiations.
The Brazilian and German
initiative seeks to apply the right to privacy, which is enshrined in the International
Covenant on Civil and Political Rights (ICCPR), to online communications. Their
proposal, first
revealed by The Cable, affirms a
"right to privacy that is not to be subjected to arbitrary or unlawful
interference with their privacy, family, home, or correspondence." It notes
that while public safety may "justify the gathering and protection of certain
sensitive information," nations "must ensure full compliance" with
international human rights laws. A final version the text is scheduled to be presented to
U.N. members on Wednesday evening and the resolution is expected to be adopted
next week.
A draft of the resolution, which
was obtained by The Cable, calls on
states to "to respect and protect the right to privacy," asserting that the "same
rights that people have offline must also be protected online, including the
right to privacy." It also requests the U.N. high commissioner for human rights,
Navi Pillay, present the U.N. General Assembly next year with a report on the
protection and promotion of the right to privacy, a provision that will ensure
the issue remains on the front burner.

Publicly, U.S. representatives say
they're open to an affirmation of privacy rights. "The United States takes very
seriously our international legal obligations, including those under the
International Covenant on Civil and Political Rights," Kurtis Cooper, a
spokesman for the U.S. mission to the United Nations, said in an email. "We
have been actively and constructively negotiating to ensure that the resolution
promotes human rights and is consistent with those obligations."
But privately, American
diplomats are pushing hard to kill a provision of the Brazilian and German
draft which states that "extraterritorial surveillance" and mass interception
of communications, personal information, and metadata may constitute a
violation of human rights. The United States and its allies, according to
diplomats, outside observers, and documents, contend that the Covenant on Civil
and Political Rights does not apply to foreign espionage.
In recent days, the United
States circulated to its allies a confidential paper highlighting American objectives in the negotiations, "Right
to Privacy in the Digital Age -- U.S. Redlines." It calls for changing the
Brazilian and German text so "that references to privacy rights are referring
explicitly to States' obligations under ICCPR and remove suggestion that such
obligations apply extraterritorially." In other words: America wants to make
sure it preserves the right to spy overseas.
The U.S. paper also calls on
governments to promote amendments that would weaken Brazil's and Germany's
contention that some "highly intrusive" acts of online espionage may constitute
a violation of freedom of expression. Instead, the United States wants to limit
the focus to illegal surveillance --
which the American government claims it never, ever does. Collecting
information on tens of millions of people around the world is perfectly
acceptable, the Obama administration has repeatedly said. It's authorized by
U.S. statute, overseen by Congress, and approved by American courts.
"Recall that the USG's [U.S.
government's] collection activities that have been disclosed are lawful
collections done in a manner protective of privacy rights," the paper states.
"So a paragraph expressing concern about illegal surveillance is one with
which we would agree."
The privacy resolution, like
most General Assembly decisions, is neither legally binding nor enforceable by
any international court. But international lawyers say it is important because
it creates the basis for an international consensus -- referred to as "soft law"
-- that over time will make it harder and harder for the United States to argue
that its mass collection of foreigners' data is lawful and in conformity with
human rights norms.
"They want to be able to say ‘we
haven't broken the law, we're not breaking the law, and we won't break the law,'"
said Dinah PoKempner, the general counsel for Human Rights Watch, who has been
tracking the negotiations. The United States, she added, wants to be able to
maintain that "we have the freedom to scoop up anything we want through the
massive surveillance of foreigners because we have no legal obligations."
The United States negotiators
have been pressing their case behind the scenes, raising concerns that the
assertion of extraterritorial human rights could constrain America's effort to go
after international terrorists. But Washington has remained relatively muted
about their concerns in the U.N. negotiating sessions. According to one
diplomat, "the United States has been very much in the backseat," leaving it to
its allies, Australia, Britain, and Canada, to take the lead.
There is no extraterritorial
obligation on states "to comply with human rights," explained one
diplomat who supports the U.S. position. "The obligation is on states to uphold
the human rights of citizens within their territory and areas of their
jurisdictions."
The position, according to Jamil
Dakwar, the director of the American Civil Liberties Union's Human Rights
Program, has little international backing. The International Court of Justice,
the U.N. Human Rights Committee, and the European Court have all asserted that
states do have an obligation to comply with human rights laws beyond their own borders,
he noted. "Governments do have obligation beyond their territories," said
Dakwar, particularly in situations, like the Guantanamo Bay detention center,
where the United States exercises "effective control" over the lives of the
detainees.
Both PoKempner and Dakwar
suggested that courts may also judge that the U.S. dominance of the Internet
places special legal obligations on it to ensure the protection of users' human
rights.
"It's clear that when the United
States is conducting surveillance, these decisions and operations start
in the
United States, the servers are at NSA headquarters, and the capabilities
are
mainly in the United States," he said. "To argue that they have no human
rights
obligations overseas is dangerous because it sends a message that there
is void
in terms of human rights protection outside countries territory. It's
going
back to the idea that you can create a legal black hole where there is
no
applicable law."
There were signs emerging on Wednesday that America may have been making
ground in pressing the Brazilians and Germans to back on one of its
toughest provisions. In an effort to address the concerns of the U.S.
and its allies, Brazil and Germany agreed to soften the language
suggesting that mass surveillance may constitute a violation of human
rights. Instead, it simply deep "concern at the negative impact" that
extraterritorial surveillance "may have on the exercise of and enjoyment
of human rights." The U.S., however, has not yet indicated it would
support the revised proposal.
The concession "is regrettable. But it’s not the end of the battle by
any means," said Human Rights Watch’s PoKempner. She added that there
will soon be another opportunity to corral America's spies: a U.N.
discussion on possible human rights violations as a result of
extraterritorial surveillance will soon be taken up by the U.N. High
commissioner.